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United States of v. Rodney Hill

March 16, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RODNEY HILL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #3.

PRELIMINARY STATEMENT

The defendant, Rodney Hill ("Hill"), along with nineteen others, is charged in a multi-count Superseding Indictment (Dkt. #296) with alleged cocaine trafficking through a continuing criminal enterprise and firearms offenses. Presently pending are Hill's non-dispositive discovery motions with respect to the Superseding Indictment.*fn1

Dkt. #324. What follows is this Court's Decision and Order with respect to those motions. This Court's Report, Recommendation and Order addressing defendant Hill's motion to suppress his statements, and evidence seized from 41 Connelly Avenue, Hill's corresponding motion to dismiss Counts 9, 10 and 11 of the Superseding Indictment and defendant Hill's request for a Franks hearing was separately filed on March 13, 2012. Dkt. #415. This Court's Report, Recommendation and Order with respect to Hill's motion to dismiss the Superseding Indictment on the basis of Speedy Trial Act violations and violations of the Sixth Amendment right to a speedy trial, motion to dismiss Counts 1, 3 and 8 of the Superseding Indictment, motion to suppress wiretap evidence and motion to sever was separately filed on March 16, 2012. Dkt. #420.

FACTS

Incorporated by reference herein are the facts set forth in this Court's two previously filed Reports, Recommendations and Orders (Dkt. ##415 and 420).

DISCUSSION AND ANALYSIS

Bill of Particulars

Defendant Hill seeks a bill of particulars with respect to Counts 3 and 8 of the Superseding Indictment so as to enable him to respond to any cross-motion by the government concerning an alibi defense. Dkt. #324-2, p.20. More specifically, defendant Hill requests:

1) set forth and describe with particularity the manner by which the Government will claim that defendant Rodney Hill combined and conspired or agreed with any of the co-defendants or co-conspirators (with separate particulars for each conspiracy charge);

2) set forth the precise time of occurrence of any alleged unlawful acts attributed to defendant Rodney Hill.

Id. at p.21. In its response, the government asserts, "[i]n effect, the defendant seeks a bill of particulars regarding the development of the conspiracy, and the defendant's role at each stage." Dkt. #383, p.4. In addition, the government states, [i]t should also be noted that the Indictment and Superseding Indictment were preceded by a 281 page criminal complaint, which criminal complaint provides a great deal of detail as to the instant charges and the defendant's conduct encompassed by this indictment. Many of the particulars sought by the defendant could be derived simply by reading the criminal complaint which preceded this indictment.

Id. at p.5. In addition to the foregoing, the government asserts that it should not be required to furnish particulars relating to the formation of a conspiracy, including when and how it was formed and when a particular defendant joined, because such details need not be proven at trial. Finally, the government states, [b]ecause the defendant will have full discovery, exculpatory and impeachment material, a witness list, exhibit lists, including 3500 materials, well in advance of the trial, he will not be surprised by the evidence against him or be subject to future jeopardy in a way he [sic] might otherwise justify ordering any of the particulars that he requests.

Id.

It has become axiomatic that the function of a bill of particulars is to apprise a defendant of the essential facts of the crime for which he has been charged. United States v. Salazar, 485 F.2d 1272, 1277-78 (2d Cir. 1973); cert. denied, 415 U.S. 985 (1974); Wong Tai v. United States, 273 U.S. 77 (1927). The charges in the Superseding Indictment, along with the 281 page affidavit filed in support of the Criminal Complaint, and the discovery materials provided by the government, clearly inform the defendant of the essential facts of the crimes charged. As a result, the defendant is not entitled to, nor is he in need of, the "particulars" being sought for that purpose. Accordingly, defendant's request for a bill of particulars is denied.

A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir.) (mem.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989); see also United States v. Leonelli, 428 F. Supp. 880, 882 (S.D.N.Y. 1977). "Whether to grant a bill of particulars rests within the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) (citing United States v. Burgin, 621 F.2d 1352, 1358-59 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980)); see also [United States v.] Bortnovsky, 820 F.2d [572] at 574 [(2d Cir. 1987)]. "Acquisition of evidentiary detail is not the function of the bill of particulars." Hemphill v. United States, 392 F.2d 45, 49 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968).

United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990); see also United States v. Chen, 378 F.3d 151, 163 (2d Cir.), cert. denied, 543 U.S. 994 (2004); United States v. Porter, No. 06-1957, 2007 WL 4103679 (2d Cir. Nov. 19, 2007), cert. denied, 128 S.Ct. 1690 (2008).

Discovery

As a threshold matter, defendant Hill notes that he previously sought discovery and inspection pursuant to Rule 16(a)(A)-(E) of the Federal Rules of Criminal Procedure, including any statements of defendant Hill, government agents and/or co-conspirators, statements obtained by the use of electronic surveillance, and copies of all statements made to government agents or prosecutors by co-defendants. Dkt. #324-3, ¶ 3, By his motion, defendant Hill seeks further discovery of: physical evidence, identification evidence, scientific tests, the criminal history of defendant Hill, and information the government plans to offer as evidence of prior or subsequent criminal bad acts or uncharged crimes of defendant Hill, and information with respect to expert witnesses whom the government intends to call at trial. In addition, defendant Hill requests informant information in connection with separate detailed discovery requests for Brady materials and information with respect to sentencing factors.

Id. at ¶ 4. The defendant does, however, acknowledge that the government has provided some materials to all defense counsel, and in his motion, defendant Hill specifically references the December 16, 2009 search warrant and search warrant application and affidavit of Federal Bureau of Investigation Special Agent Vanessa Paris, portions of the Verified Complaint for Forfeiture verified on June 24, 2010, and certain of the Title III wiretaps previously disclosed. Dkt. #324-3, ¶ 5.

In its response, the government states, [s]ince the date of the indictment, the United States has complied, and intends to comply, with the requirements of Rule 12 and 16. To that end, the United States provided comprehensive voluntary discovery in both the Indictment and Superseding Indictment portions of this case. On July 16, 2011, in accordance with the Court's scheduling order, the Government provided a complete set of digitized CDs to each defendant's attorney, which included all evidence in the Government's possession to which the defendant's were entitled under Rule 12 and Rule 16. In addition, all physical evidence recovered in connection with this investigation is, and has been, available for inspection by the defendant's attorney. . . . The government will continue to comply with its continuing duties to disclose set forth in Rule 16(c). The government herein notifies the defendant that it may introduce all of this evidence at trial. Expert disclosures and expert summaries will be provided as expert witnesses who will testify at trial are identified by the government.

Dkt. #383, pp.6-7. In a separate response concerning expert witnesses, the government adds that, "we expect to provide fuller disclosure of expert forensic chemists' credentials and methods used during chemical analyses in support of expert opinions. The government will also supply the name and qualifications of government law enforcement experts relating to vague/coded language, and firearms. The government reserves the right to offer the testimony of other expert witnesses. If the government decides to use such an expert witness, it will fully comply with Fed.R.Crim.P. Rule 16(a)(1)(G) and Fed.R.Evid. 702, 703, and 705." Id. at p.27. Finally, the government states that it believes that it is in full compliance with Rules 12 and 16 of the Federal Rules of Criminal Procedure. Id. at p.7.

Based on the government's representations concerning what has already been disclosed and what will be disclosed and the government's awareness of its ongoing discovery ...


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